National Consumer Disputes Redressal
Pawan Kumar Jain vs Dr. J.K. Jain on 12 February, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 183 OF 1998 Pawan Kumar Jain S/o Sri Banwari Lal Jain R/o 109, New Vijay Nagar Colony P.S. : Hari Parwat Tehsil & District: Agra (U.P.). Complainant Versus 1. Dr. J.K. Jain Orthopaedic Surgeon Gurhai Tajgunj P.S. Tajgunj Agra (U.P.). Presently at: Medical officer Primary Health Centre, Atrauli Distt. Aligarh (U.P.). 2. Dr. S.S. Gupta 175, New Vijay Nagar Colony Agra (U.P.). 3. Mittal Nursing Home Through Dr. Avinash Mittal 87-A, North Vijay Nagar Agra- 282004. Opposite Party(s) BEFORE : HONBLE MR. JUSTICE K.S. GUPTA, PRESIDING MEMBER HONBLE MRS. RAJYALAKSHMI RAO, MEMBER For the Complainant(s) : Shri Avdesh Choudhary, Adv. For the Opp. Party(s) : Shri K.P.S. Rao, Adv., Shri J.K. Jain and Dr. S.S. Gupta. Pronounced on : 12 February 2010 ORDER
PER MRS. RAJYALAKSHMI RAO, MEMBER Complainant, father of deceased Nitin Jain filed this complaint alleging medical negligence and deficiency in service against opposite No. 1 Dr. J.K. Jain, Agra, Opposite Party No. 2 Dr. S.S. Gupta, Agra and opposite party No. 3 Mittal Nursing Home, Agra.
Brief facts of the case are that :-
Twenty years old Nitin was an accomplished sportsman having sound health and physique. He was the captain of the University cricket teams besides representing the University in Football and other sports and had bright academic career. On 22.8.1997 at 4.30 P.M. when he was doing football practice at Dayal Bagh University playground, he received a sprain in his right ankle. He applied iodex and resumed practice for more than an hour as the team was preparing for an important match. Till evening of 25.08.1997 he did not complain of serious pain.
His mother was under treatment with opposite party No. 1 for a fracture in her right forearm and she was getting treatment from opposite party No. 1. Coincidentally, Nitin accompanied his mother to opposite party No. 1 Hospital where after her check up, on a mention to the doctor, Nitish also showed the sprain in his right foot to the doctor. Opposite party No. 1 glanced at his foot and without either any physical examination or any X-Ray, suggested that there is a fracture in his ankle and he needs immediate plaster cast. Despite Nitins disinclination for the plaster cast as it would hamper his practice, opposite party No. 1 put the plaster cast. He charged Rs. 870/- without issuing any receipt and mentioned in the case sheet Acute sprain with fracture malleoulus. It is stated that opposite party No. 1 is distantly related to the complainant and therefore the receipt could not be insisted on and the treatment was to be done on good faith. It is stated that there were no skin abrasions, blisters, lesions, cuts or wounds or swelling at all on his leg. Opposite party in a lackadaisical, without an X-Ray, was not following normal medical procedure and precautions like cleaning the foot before putting the plaster cast. It is also stated that dirty looking POP powder kept in a dirty open tin container kept in a filthy corner of his clinic was used on Nitins wound along with cotton and gauge which were used were also dirty; the metal support used for ankle base was rusted; before putting the plaster, that part of the body was not even cleaned nor any disinfectant was used and opposite party had asked Nitish to come for check up on 27.8.96.
On 26.08.96, Nitish felt the plaster cast very tight and uncomfortable and opposite party was informed on phone who assured that there was no cause to worry and be shown to him on 27.8.96. On 27.8.96, when opposite party had examined Nitin, the toes of complainant stated that everything was O.K and prescribed pain killer to suppress the pain. The opposite party no. 1 did not examine the tightness of the plaster cast which caused discomfort and pain with needed to be loosened or removed.
Nitin felt pain and discomfort during the next day i.e. 28.6.96 who took pain killer as suggested by opposite party no. 1 but by evening the pain and discomfort increased significantly and swelling was seen on toes. On 29.8.96, Nitin was having lot of pain in the foot and leg and had developed fever also. He was taken to the District Hospital before 9.00AM since opposite party No. 1 would be available then as he was also working in the hospital besides running private practice at his home by Nitins brother Alok Jain. Registration was done and a prescription form was obtained. It is the for the first time opposite party asked for an X-Ray of the right ankle with the plaster cast and instructed that it be done at Agra X-Ray Centre and accordingly, the X-Ray was got done at Agra X-Ray Centre and X-Ray was immediately sent to opposite party No. 1. Radiologist did not give any report saying that Dr. Jain would tell you himself. After seeing the X-Ray, opposite party No. 1 cut the plaster about five inches from the toes upto the ankle to loosen it over the foot and made the following prescription :- Emoflam, Inertiq Fort and Vivogesic 50, he also told the patient to take the medicines for three days and assured him that all is well.
Opposite party No. 1 did not ask for blood test. The plaster cast was restricting the blood circulation and some infection had set in causing fever and further improper blood flow giving rise to septicaemia as well as embolisms, causing further problems in other vital organs of the body.
On 30.08.1996 the patients condition deteriorated, he had fever and severe pain as well as a feeling of weakness and he was taken to District Hospital at 8.30AM.
Opposite party no. 1 appeared irritated and commented that the patient was fussy and complaining of pain, however cut the rest of the plaster, about 6-7 inches to loosen it full but fully opened, so opposite party no. 1 tied a white gauze bandage on top to prevent it from becoming too loose. The patient was instructed to take the drugs for 3-4 days and not worry too much about the fever. On 31.8.96 also there was no significant improvement and further deterioration of the condition of the patient was seen. On 01.09.96, though the fever subsided a bit the swelling and pain did not reduce at all. The patient had lot of weakness and was having difficulty in breathing.
There was no cough or congestion but continuous pain in foot and stringing sensation and this was informed to opposite party no. 1 in the evening, who advised Nitin to continue the medication. Complainants parents were worried and requested opposite party no. 1 to come and examine the patient but he did not do so. On 02.09.96, the patients condition was deteriorated further with fever and pain and had pronounced difficulty in breathing. The patient was weak and had feeling of fainting and nausea and was suffering from continuous thudding pain in foot and leg, continued with frequent sparks of stinging pain and not flashes. When complainant asked opposite party No. 1 if they could show to any other doctor in the neighborhood, he was firmly told not to entertain that idea.
The symptoms were indicative of cellulites, toxemia, septiceamia and possibly gangrene which warranted immediate medical intervention and possible hospitalization. On 03.09.06, opposite party No. 1 cut off the plaster cast and cleaned the foot with dettol, the parents insisted on seeing the foot and observed two black marks, less than an inch in diameter, one each on both sides of the ankle and several blood red patches on the skin of the foot and the lower leg i.e. the area which was covered by the plaster cast.
The complainant enquired from opposite party No. 1 if there was any septic on the leg and the opposite party No. 1 rudely admonished him to leave the medical profession to him. Once again the complainant tried to give the name of Dr. Ravi Sabharwal when opposite party No. 1 said that he is not a doctor worth the name. All the cases which Sabharwal spoils usually come to me for treatment. After cleaning the leg, opposite party No. 1 applied a yellow colored ointment , covered the leg and foot with cotton and gauze and finally wrapped it up in crepe bandage. Opposite party no. 1 asked for a blood test to be done, like, Hb, TLC, DLC, ESR, blood sugar(R). Since it was Tuesday, most of the labs in that side of the town were closed, opposite party No. 1 suggested that the test report be shown to him the next day. When the complainant asked if he has to go to the hospital, like S.N. Medical College, the opposite party No. 1 explicitly instructed him not to take the patient anywhere and mentioned that if they go anywhere else, case will become more complicated and that he will not be responsible for it.
Opposite party No. 1 prescribed multiple strong antibiotics Apnaclox, Ciprowin, Sistal, and pain killer Nimulid.
The complainants realized the gravity of the condition of the patient on 04.09.96 and he was unable to sleep as he was suffering from high fever and extreme pain in the leg and foot.
Complainant contacted Dr. D.K. Goel to give an opinion. Dr. Goel who saw the patient at 2.30 PM but did not open the bandage on the foot and leg.
After examining the patient he recommended hospitalization and asked for a blood test Hb, TLC, DLC, ESR, Bloodlena, S.Priluibim and referred the case to Orthopedic Surgeon. With all the blood test results and Dr. Goels prescription, the complainant tried to meet opposite party no. 1 who arrived at around 8.00PM in the hospital. As opposite party no. 1 was reading the patients test reports, the mother of the patient telephoned stating that the patient was bleeding from the mouth and requested him to come, but opposite party No. 1 told her to approach Dr. Shyam Sunder Gupta, a physician whose clinic is near the residence of the complainant and to take him to Mittal Nursing Home, and accordingly the patient was taken to Mittal Nursing Home at 9.10 PM and the admission form mentions treatment for right side pneumonia (colunters) & ARR & Cellulitis in right lower limb and pus formation and septicemia. By now, the patient was suffering from cellulitis, pus formation, septiceamia in the right leg and foot which had given rise to further causing high fever, respiratory problems and effecting other vital body functions. It was possible to save the patient without having to amputate his leg, if proper course of treatment, including surgical intervention was adopted. On 4th night at about 10.30PM, the drugs were requisitioned and administered on the patient. At 10.30PM, the treatment was started and by 3.00AM, the patient started developing high temperature and started turning bluish and was extremely agitated, the nurse got panicked and telephoned Dr. S.S. Gupta who refused to come but instead gave instructions to the nurse to administer some injections, which the nurse promptly gave.
The temperature did not come down till 4.30AM so the complainant along with relatives went to Dr. S.S. Guptas residence in the same colony and entreated him to come immediately as the condition of the patient was not improving. Dr. S.S. Gupta sent them back assuring them that he would come soon. Meanwhile, other family members contacted Dr. Arvind Jain with whom they were acquainted with requested him to treat the patient.
Dr. Arvind Jain said he would come provided if the doctors currently treating him have no objection. Dr. Arvind Jain contacted Dr. S.S. Gupta by phone, however, at 5.15AM, Dr. Arvind Jain arrived at the Nursing Home and examined the patient but did not open the bandage on the foot because Dr. S.S. Gupta did not arrive till 6.00AM. Dr. Arvind Jain left a slip mentioning that he suspected Staphylocococal pneumonia, and to confirm the same, the following tests were suggested :
1.
Sputum for AFB
2. Sputum C & S
3. Pus Swab C & S from wound (Rt ankle) Dr. Arvind Jain also recommended that in the meanwhile the following medications be added to patients treatment:
a) Inj. Augmentin
b) I/V Vanocin Cp 500 mg in 25%
c) Dextrose 100ml, slowly in 1 to 2 hours
d) I/V 8 hours.
Dr. Arvind Jain also recommended that Geramycin may be withdrawn. He also suggested that the patient be shifted to another Nursing Home or hospital which had better facilities and where he could take the patient under his treatment. Dr. Arvind Jain was paid Rs. 100/- as visiting charges.
There seem to be a misunderstanding between the Doctors i.e. Dr. Gupta and Dr. Mittal.
Dr. S.S. Gupta arrived at 6.40 AM and said that the tests would be done only in the evening when the bandages would be opened. He however, rejected Dr. Arvind Jains recommendation for additional medication saying that the dosage recommended was too high and he would stick to his own course of treatment, and refused to shift the patient to some other hospital saying I will not agree to it as there one doctor will add salt another will add pepper and spoil the case. If you want to do so entirely on your own responsibility that I cant stop you. He also stated that the patient could not be moved due to his serious condition. He finally arrived at 3.00PM and took the patient into the operation theatre where he cleaned the wound and removed the pus. By 5.00PM, the patient was returned to his bed in the patients ward and oxygen and dextrose drip was administered.
Samples of sputum and pus were collected by some person from Shree Ram X-Ray and Pathology Centre and the report was to come after 3 days i.e. on 08.09.96. There was some heated discussion between opposite party No. 1 Dr. S.S. Gupta, Mittal Nursing Home and some medical text books were also exchanged. Dr. Avinash Mittal disassociated himself from this totally. There were many lesions with pus formation and open blisters and wounds in the foot and leg by this time, indicative of Septicaemia progressing towards Gangrene. The wound was covered up again but still surgical operation was not exercised. On 6.9.1996, the patient was taken to the Operation Theatre at 8.15 A.M. to clean his wounds as by then 10 hrs. delay was caused and poisonous toxins had spread in the body. Family members contacted Dr. S.C. Sahu at S.N. Medical College, Agra. He arrived at 8.45 P.M. He being a Senior Doctor was allowed to come to the OT wherein they remained almost for two hours. After 11.15 P.M. , Dr. Sahu had been very critical of the treatment that was given to the patient and pointed out the mistakes. Dr. Sahu recommended color Doppler study of right lower limb to study vascular blockage and venous blockage and Ultrasound study of right lower limb for study of any deep abscess. On 7.9.1996, when the patient had gone to sleep his breathing was shallow and at around 12.15 A.M. the Complainant noticed that his breathing seemed to have stopped. He immediately called the Nurse and called Dr. Avinash Mittal.
Thereafter, Dr. S.S. Gupta also came and tried to revive the patient but he was declared dead by 12.45 A.M. The Complainant alleged deficiency in service stating that for pecuniary gains the Opposite Parties wrongly put on a plaster cast which caused Cellulitis and Septicaemia and thereafter he did not take proper corrective action. The fractured bone of the ankle of Nitin was not properly placed in plaster which resulted in Septicaemia and caused death of the patient and for the gross negligence and untimely demise of son of the Complainant, it is prayed that Opposite Parties are liable to compensate to the family of the deceased as under:-
(Amount in Rs.)
i) For financial loss due to untimely death 54,00,000/-
of brilliant and young son;
ii) For mental agony and perpetual gloom 10,00,000/-
suffered by the Complainant;
iii) Amount spent on the treatment of the 10,000/-
deceased.
Total: ---------------
64,10,000/-
---------------
REPLY OF OPPOSITE PARTY NO. 1Dr J K Jain OP No. 1 had stated that the complainant had filed a baseless and frivolous complaint praying exaggerated compensation and that the complaint should be dismissed. It is stated that the complainant lodged an FIR under Section 304 IPC in police station at Rakab Ganj, Distt. Agra and after investigation a final report was submitted by the investigating officer stating therein that there is no case is made out.
The 6th Additional Chief Judicial Magistrate Agra vide order dated 11.08.1998 rejected the petition filed by the complainant and accepted the final report on 11.08.1998. The 9th Additional District and Sessions Judge Agra vide their order dated 16.11.1999 has stated that the review petition was dismissed and affirmed the order of the 6th Additional Chief Judicial Magistrate. By order dated 11.08.1998, the complainant filed a criminal revision before the 9th Additional District and Sessions Judge, Agra, vide order dated 16.11.1999 that revision petition was also dismissed and affirming the order of 6th Additional Chief Judicial Magistrate. The complainants allegation of medical negligence has been to the judicial scrutiny of more than three courts and by giving a concurrent findings no case of medical negligence was made out.
Complainant is also liable to be dismissed on the grounds of limitation.
It is wrongly alleged that OP had taken any payment for the service rendered because the complainant is related to him. It was purely a gratuitous care was taken and hence, no service were rendered for payment the complainant cannot be a consumer in these circumstances.
It is stated that the deceased came to the clinic along with his mother who was already under their treatment on 24.08.1996 for check-up of his ankle injury. A x-ray plate was brought to them and after examination of the same and it was diagnosed AC SP C FR Lt Mall (R ) Acute sprain with fracture lateral malleolus). Although the x-ray plate was of the right ankle but its quality was poor but needed a fresh x-ray of the part for clear view and there was a great tenderness (pain) over the lateral malleolus bone. The ankle was unstable due to sprain after giving first aid by putting temporary plaster cast, the complainant was asked to get plaster powder and other materials from the market.
After 24.08.996, the patient came back only on 27.08.1996 in the District Hospital. It is the complainant who brought the prescribed material from the market. Patient was required to come on 26.08.1996 but he came back only on 27.08.1996 to District Hospital, Agra that too in a late hours.
The patient came with the x-rays after two days i.e. 29.08.1996. The patient was brought in a temporary plaster cast and that was cut from the front for the x-ray purpose. While the temporary plaster being cut there was swelling in the right leg and foot and blister was noticed and the deceased was also having tachynpnoea increased respiratory rate. The patient was also having fever. After removing the plaster, the part was cleaned with savlon and spirit, Sumag ointment was applied with crepe bandage strapping was done in the swollen area and advised the patient to keep the leg elevated and the patient was asked to come back but he did not do so. It is stated that the patient was shown to a physician and the complainant never gave any head to it. The complainant did not get examined by a physician nor did he got the blood investigation done or repeat skiagram without POP cast and remained absent from the noon of 29.08.1996 to the afternoon of 05.09.1996 i.e. complete 7 seven days. The OP cannot be held responsible as the complainant did not reveal as to whom he got his son treated during these seven days. There was a question/ discussion of amputation. OP No.1 removed the plaster on the previous day i.e. 29.08.1996. What ever said by the complainant for these days are based on imagination. On the morning of 05.09.1996 the complainant informed him telephonically that the patient was admitted to Mittal Nursing Home on the night of 04.09.1996 due to serious condition. OP NO. 1 visited Mittal Nursing Home at 03.00 P M and after examining the patient he left. It is also stated that on 06.09.1996, he was at the District Hospital, Agra.
Dr. S. C. Sahu, Professor and Head of the Department of Orthopedic Surgery, S N Medical College, Agra reached there at 08.30 pm. The patient was shifted to the dressing room for examination. Doctors found the condition of patients that swelling has been remarkably reduced pus oozing and bleeding also reduced, debridement of deed skin done i.e. the left over part of the skin was dead of blister was removed. Dr. S. C. Sahu left the place at 09.30 p m and OP NO. 1 left at 10.30 p m. It is also stated that he never instructed the nurses at any time to give any injection either than routine prescribed one. Hence, complainants allegations were false regarding the same.
At 01.15 p m on 07.09.1996, he was informed by Dr. S. C. Sahu that the patient has expired at 12.45 a m. It is the complainant who have ignored the directions given by the OP No. 1 and did not follow its instructions. It is stated that there was no negligence or deficiency on its part while prescribing treatment to the deceased.
REPLY OF OPPOSITE PARTY NO. 2It is stated that OP No. 2 is a Government doctor and that he rendered services to Nitin Jain purely on humanitarian grounds that to as he was a relative of his colleague OP No.1. It is stated that the patient came to his resident at 09.15 AM on 04.09.1996 with a request slip of Dr. J. K. Jain dated 29.08.1996 with a request to visit the residence and see the patient. OP NO. 2 told that he does not do house visit and advised him to go to the emergency of S M Medical College or District Hospital, Agra. Then he received a telephone call from Dr. J. K. Jain OP NO. 1 and after discussion the patient was taken in an ambulance to a neighbouring nursing home, where he was admitted. OP No. 2 Mittal Nursing Home found that the patient is critically ill. At that time the pulse was found 130 per minute, B P 140/ 80, mm Hg dyanosed, resp shallow, TOXIC and perspiration, at this juncture further shifting might have perilous, but he explained to the family that the patients condition is critical. It was also suggested that the complainant should consult other physician/ orthopaedic surgeon in the morning and shift to other hospital or ED or S N Medical College, Agra. At 02.00 AM on 05.09.1996, he was told that the patient was comfortable and sleeping. Thereafter the attendant of the patient came to his residence at about 07.00 A M on 05.09.1996 and asked for a letter to Dr Arvind Jain. Dr Jain visited at about 07.30 A M and talked to OP NO. 2 regarding treatment. OP NO. 2 visited at 08. 00 A M on 05.09.1996. On 06.09.1996 at 01.30 P M the OP No. 2 made minor change in the treatment and told the complainant to consult Senior Doctor. Physician or Orthopaedic Surgeon and gave a reference letter to Dr. S. C. Sahu and Dr M P Malhotra, Sr. Physician and advised to shift the patient to a bigger hospital or S N Hospital.
Although he left the nursing home at 09.30 p m but he returned late because, the patient was having B P and was not record able and he was gasping fully cyanosed. OP NO. 2 did all efforts to revive the patient by giving cardiac massage artificial respiration etc., for 15 minutes but the patient could not be revived and declared dead. It is stated that the complainant had hardly treated the patient, hence, no negligence can be attributed against OP NO. 2.
REPLY OF OP NO. 3 - MITTAL NURSING HOME:
It is stated by the complainant that there was heated argument among the doctors regarding the course of treatment should be followed. Firstly, doctor Mittal was never associated with the patient, hence, there was no allegation against OP No. 3 and that the complaint should be dismissed for devoid of merits.
The Complainant filed evidence by way of affidavit and also written submissions. The Complainant filed a miscellaneous application no.987/2009 to constitute medical board to submit the opinion to the Commission. The Commission vide order dated 10.9.2009 after considering the reply of from the Opposite Parties to the miscellaneous application filed by the Complainant, the Commission felt that this application being contested by the Opposite Parties will be decided at the time of final arguments and directed both the parties to file further submissions.
In t he absence of relevant medical papers and material on record, it would be even difficult to send the record for medical opinion.
After taking into consideration that it is an old matter and for constituting medical board for obtaining a report which would cause further delay the matter, the Commission did not find any need to allow the miscellaneous application and decided the matter on merit. The mater was finally heard on 8.12.2009.
VERSION OF THE COMPLAINANT :-
Learned Counsel for the Complainant submitted that Nitin Jain was a brilliant student that besides being a topper in many subjects, he was an accomplished sportsman having sound health and physique.
He was only 20 years old and had distinction of captaining the University Cricket Team besides representing the University in football and other sports. Such a young man succumb to death because of deficiency in service and medical negligence on the part of the Opposite Parties. Nitin during his routine football practice on the sports ground received a sprain inhis right ankle on 22.8.1996. He somehow tolerated pain by applying Iodex till 25.8.1996 evening. Coincidentally his mother was under treatment of Opposite Party no.1 for a fracture in her right forearm and he accompanied his mother to the clinic of Opposite Party no.1, when she mentioned as a passing reference to the doctor about the sprain on his right foot. Opposite Party No.1 without any physical examination or X-ray, suggested that there was a fracture in his ankle and opined that it needed immediate plaster cast.
Despite Nitins disinclination for the paster cast to be put, on the plea that the same would hamper his practice, the Opposite Party no.1 immediately put a plaster cast. For putting the plaster, Opposite Party no.1 charged Rs.870/- towards fee and material but did not issue any receipt.
The POP plaster cast was put by Opposite Party no.1 by using dirty looking POP powder kept in a dirty open tin container kept in a filthy corner of his clinic. The cotton and gauze used were also dirty and the metal support used for ankle base was rusted. Before putting the plaster cast, the affected part of the body was not even cleaned nor any disinfectant was used by Opposite Party No.1. Nitin was given pain killer to suppress the pain and on 28.8.1996 pain increased and yet he was advised to take pain killers. By 29.8.1996 Nitin developed fever with tremendous pain in the foot and leg. Thereafter Opposite Party no.1 cut the front portion of the plaster and gave with prescription i.e. Emoflam, Inertig Fort & Vivogesic 50. Learned Counsel contended that Opposite Party no.1 did not ask for blood test which normally a doctor would have asked for without doing thorough physical examination of the foot. The plaster was restricting blood circulation and it was possible that an infection had set in and could have been the cause of the fever. It is further contended that improper blood flow could cause cellulities, give rise to septiceamia as well as embolisms. By 30.9.1996, Nitins condition was further deteriorated. When the plaster was removed by Opposite Party no.1 on 3.9.1996 the doctor noted some sign of septic on the ankle but the doctor did not take any advice in this regard. On seeing patients critical condition, Complainant called Dr. Sahu on 6.9.1997 who attended and checked the patient. The patient was shifted to Mittal Nursing Home and advised to get ultrasound check up. After seeing the ultrasound report, Dr. Sahu stated that he would start the treatment on 7.9.1997. Opposite Party no.1 gave two injections without stating any reason and on the same night at 12.45 the patient died even before Dr. Sahu could start the treatment.
It is contended that death certificate issued by the Opposite Parties mentioned inter alia:
This is to certify that Mr. Nitin Jain S/o Shri Pawan Jain aged about 20 years was admitted herein in Mittal Nursing Home on dated 4.9.1996 at 10.00 PM as a case of Rt lower limb cellulites with DVT with Rt side lobar pneumonia with ARF with ADRS. He expired due to cardiac respiratory arrest in spite of all necessary measure taken DVT stands for Deep vein thrombosis ARF stands for Acute Renal Failure ADRs stands for Acute respiratory Distress Syndrome.
In medicine DVT ordeep vein thrombosis is the formation of a blood clot in a deep vein. It is a form of thrombophiebitis (inflammation of a vein with clot formation). DVT commonly affects the leg veins and in case of orthopedic plaster cast, the patient due to prolong immobilization may develop DVT.
A DVT can occur without symptoms, but in many cases the affected extremity will be painful, swollen, red, warm and the superficial vein may be engorged. In case the patient is not treated for DVT, then the Blood clot could dislodge and travel to the lungs, which is called pulmonary embolism (PE), which may result into death of the patient.
The plaster cast resulted into DVT and then PE which resulted into the ultimate death of Nitin Jain.
It is also an admitted case of the Respondent that Nitin Jains right side lower limb under the plaster cast was several times cleaned as pus has formed, which clearly leads to the fact that Nitin Jain was also affected by septiceamia, because of the soft tissue infection in the plaster. Since Nitin was not treated properly even as septicemia transformed to gangrene and he expired on 7.9.1996 although at the most septicemia could have resulted into the amputation of the right leg.
It is urged that no documents, neither the nurse flow chart, nor the advice and treatment given by the duty doctors were given to the Complainant. It has to be construed that they have deliberately not given all the documents and as such amounts to deficiency in service. In the facts and circumstances of the case, the maxim res ispa loquitor becomes applicable. The said maxim is not rule of law but the rule of evidence. As a rule if the cause of negligence is unknown and a plaint is filed the action may be rejected based on no direct evidence. However, some cases are peculiar in nature and have evidence, which does not require explanation and speaks for itself clearly regarding the unambiguous nature of the negligent act.
It is submitted that all Opposite Parties are working in Govt. Hospital but payment from the Complainant which was not permissible took under the rules.
It is common knowledge that a sprain and a plaster cast in the ankle does not lead to death of a person. The negligence in general does not happen unless there is lack of care and the cast was applied admittedly even before the X-Ray, which led to Deep Vein Thrombosis and resulted into the Pulmonary embolism thus resulting into the death in the hands of the Respondents.
Opposite Parties are liable for deficiency in service because before plaster cast was placed, unhygienic powder etc. was used which could have infected the area.
Further it is stated that Opposite Parties misconstrued the evidence submitted to the police on the complaint filed before NHRC. Ld. Trial court wrongly construe that drinking cold drinks could not lead to Septiceamia or deep vein thrombosis or pulmonary embolism to Nitin which could ultimately lead to death.
It is submitted that there are catena of judgments which say that civil remedy is separate and could be pursued together even if the criminal complaint fails on merit and consumers can always approach the Consumer Forum.
It is urged that the prayer made in the complaint should be allowed against Opposite Parties.
VERSION OF OPPOSITE PARTIES Learned Counsel for the Opposite Parties submitted that the complaint is based on vague allegation and Complainant has withheld material information to the Opposite Parties before the treatment was started. He, further, submitted that:-
1.
On 24.8.1996 Nitin Jain alongwith his mother came to OP No. 1 who was treating him. He brought an X-ray plate and after seeing that the temporary plaster cast was given and was advised anti-swelling and pain relievers. Again on 27.8.1996, he came alongwith his mother in late hours but did not complain of any pain and hence he was asked to return on 29th. It was for the first time that the Complainant came with his son and narrated regarding fever, swelling in his right leg and foot with some blisters.
Immediately, thereafter, X-ray of right ankle without POP cast and some other tests were advised. But the Complainant and his son did not turn up from 29.8.1996 to the evening of 4.9.1996. This clearly proves that the Complainant himself is responsible for not giving proper history of the patient on the first occasion and thereafter trickling information from the Opposite Parties as and when it suited him.
2. On 4.9.1996 evening, the Complainant came to Opposite Partys house saying that his son has breathlessness and bleeding from mouth.
OP No. 1 scolded him and advised him to admit him in the District or Medical College Hospital. For the reasons best known to the Complainant, he was not interested in doing so and wanted him to got checked by some other doctor. OP No. 1 helped him on humanitarian grounds that he could see Opposite Party No.
2.
3. The investigations that were advised on 29.8.1996 were got done only on 4.9.1996 i.e. after 7 days after the advise was given which shows that negligence was on the part of the Complainant itself and can not be attributed to the Opposite Parties.
4. As far as Opposite Party No. 2 is concerned, the Complainant came to his house on 4.9.1996 and OP No. 2 took a detailed chronological history of the patient. It is only then the deceased clearly told OP No. 2 that he had high grade fever three days prior to the fracture of right lower limb and fever was treated by local doctor and which did not respond. He had also got massage on the lower limb for three days and then had plaster cast etc. from OP No.
1. It was only on 29.9.1996 when the plaster cast was removed by OP NO. 1 he was advised to consult surgeon and physician.
5. Since this information was given for the first time, it is clear that complainants themselves were not being serious about the advise given by OP No. 1.
6. Dr. Goel visited at the residence of the Complainant at 2.30 P.M. on 4.9.1996 and advised for hospitalization which was also not followed by the Complainant.
7. OP No. 2 told the Complainant that the deceased is running with deadly disease of poor prognosis and he is in critical stage. He advised to consult another physician and to shift to S.N. Medical College.
8. The diagnosis made at the time of admission was ARDS with right side lobar pneumonia with ARF with Cellulitis in right lower limb with pus formation with Septicaemia. The investigation reports confirmed the diagnosis. Treatment given was evidence based as per culture reports and as per norms.
In this case, correct diagnosis was made and the poor outcome of the illness was also explained to the Complainant.
9. Complainant filed different complaints- one before Human Rights Commission and another criminal case before the Chief Judicial Magistrate and ADJ. In Human Rights Commission, the complainant said that the deceased is suffering from Malaria and had a cold drink and drenched in water. As a consequence, the problems were increased and he died finally.
No post-mortem was allowed and done with an intention to mislead the case. It was also observed by the Chief Judicial Magistrate that the complainant himself did not get post-mortem of his son, and he was having fever before and after plaster cast and was suffering from Malaria after having a cold drink and drenched in water. It is the finding of the court that There is no reason to believe that Nitin died due to wrapping of plaster on 24.8.1996. The copier of the Judgments were annexed herewith as R4 & R5. The investigation officer took statement of two senior doctors of Medical Board of District Hospital, Agra, Dr. S.N. Agarwal & R.C. Srivastava and also statements of Dr. Avinash Mittal. None of them ascribed this death to Dr. Jains negligence. It is not the case of the complainants that the investigation report was wrongly recorded by the investigation officer.
Since the matter has been decided by the Competent Authority, there is no reason for the complainant to complain in different courts for the same cause of action and the principle of Res judicata applies.
10. The Complainant and the deceased did not inform about the pre-existing fever to OP No. 1 in the beginning. For the first time, an indication was given to OP on 29th and on the day itself OP No. 1 advised him to get investigations done immediately and to consult surgeon in the hospital. For the reasons best known to the Complainant, the investigations were not got done nor did they go to any hospital. No Doctor would know about pre-existing problems unless told by the patient or by the relatives.
11. Learned Counsel referred to the case Morton and Morton Vs. Mutchnick (American Medical News (11/17/9) Vol. 40, No. 43, P.
26). In this case, the Missouri appellate court has upheld a summary judgment for a group of doctors involved in a wrongful death suit for their failure to diagnose a man with AIDS. In this case, the appellate court because the plaintiffs could not prove that the doctors actions were the proximate cause of death. The patient had been treated for a sebaceous cyst in 1989 and returned to the physicians clinic the next year with symptoms of fatigue, dry cough and loss of appetite. The man was diagnosed with influenza, but after 11 days, his condition was so severe that his family requested that he be hospitalized. The patient died one week later from respiratory distress secondary to AIDS. The Missouri court ruled that the patient died as the result of a pre-existing condition, so no casual relationship could be formed between his death and any purported negligence on the part of the physicians.
12. On 5th morning, Dr. Arvind Jain visited the deceased and endorsed the same treatment to be followed and also advised the Complainant to shift his son to S.N. Medical College. The Complainant themselves did not care to follow the advise and did not want to shift Nitin to S.N. Medical College. On humanitarian grounds, OP No. 2 treated his son on 6th. On 6th itself, a medical opinion was also taken from Dr. Sahu of SN Medical College who also endorsed the same treatment but on the same day Nitin Jain died.
13. To know the exact cause of death, OPs advised post-mortem to be done which the Complainant did not allow for the reasons best known to him.
14. In the complaint, the Complainant stated that OP No. 1 attended to his son at Opposite Party No. 1s residence. But later in annexure C1 page 63 of the complaint, it is noted that the complainants son was attended by OP No. 1 at the hospital and not at his residence and this fact was mentioned in the slip itself as LOPD (late in OPD).
15. Complainants allegation that dirty and filthy plaster material was used is false and there is no evidence to prove the same.
16. No operation was ever conducted on the deceased as alleged because on 5th & 6th only surgical dressing was done.
17. Medical examination and advise given on 29.8.1996 was never followed. Further, what happened between 28.9.1996 to 3.9.1996 and treatment what was given, under whom it was given, has not been brought on record by the Complainant.
18. Investigations advised on 28.8.1996 were got done only on 4.9.1996 which is nothing but negligence on the part of the Complainant.
19. It is also submitted that record of Mittal Nursing Home was handed over to the Complainant but he only produced part of it to mis-guide the Commission.
In view of the aforesaid arguments, Learned Counsel for the Opposite Parties urged that the complaint be dismissed.
FINDINGS Heard both the parties at length and perused the record, affidavits filed by the Complainant, Opposite Party No. 11,2 & 3 and the written submissions.
This is a clear example of gross negligence by a father to his son in getting timely medical treatment to him by disclosing the entire previous medical history of his son. The tendency to hide material information from the Doctors while approaching them for treatment has been condemned repeatedly by this Commission.
In the Judgment delivered by VI Additional Chief Judicial Magistrate, Agra, it was held that- The entire case diary was perused. It is clear form the case file that when the doctor examined Nitin on 29.8.1996 in District Hospital he gave a noting that the patient is suffering from fever before and after wrapping of the plaster and that the patient was suffering from reaction due to cold drink. Thus to say that the patient suffered from fever due to plaster does not appear to be correct.
Complainant himself has stated in his letter to the Human Rights Commission that Nitin Jain was suffering from malaria fever and that he got drenched in water and as a consequence the fever got deteriorated.
11 days after the wrapping of plaster he died, thus it is obvious that Nitin was suffering from malaria before his death and that he was drenched in water. It is not unlikely to contract pneumonia on being drenched in water in fever. Malaria in itself is a dangerous fever and if the patient drinks cold drink and is drenched in water then the risk increases. In any case, in our country, thousands of people die due to lack of malaria treatment.
Thus for argument if it is accepted that plaster should not have been wrapped even then the plaster cannot be the cause of death.
In the matter, it was necessary to get Post Mortem of Nitin Jan so as to know the cause of his death but the complainant has not got it done.
The argument that reason for not getting the post mortem was intention to mislead by the accused does not appear to be credible and there is nothing in the case file to suggest this. Even otherwise, the accusation of misleading does not seem to be correct as Nitin was treated by Dr. Avinash Mittal, Dr. Gupta, Dr. Arvind Jain and Dr. S.C. Sahu Hospital. Before death Nitin was twice operated upon. According to Dr. Avinash Mittal, Nitin died due to worsening of Pneumonia.
In the circumstances, when the complainant himself did not get postmortem of his son and two operations were conducted on him after cutting of plaster on 31.8.1996. He was having fever before and after the plaster. He was suffering from Malaria and he drank cold drink in fever and became drenched in water. There is no reason to believe that Nitin died due to wrapping of plaster on 25.8.1996. Investigation officer took statement of two senior doctors Dr. S.N. Aggarwal, Dr. R.C. Srivastava, and also took statements of Dr. Avinash Mittal. None of them ascribed this death to Dr. Jains negligence.
It is not complainants case that these statements were wrongly recorded by the investigation officer.
Therefore, final report filed is correct and the same is accepted and protest petition filed against it is rejected.
Although, we are not bound by the aforesaid decision in the Consumer For a, but what we would like to stress is that the Complainant has to come with clean hands and file a genuine complaint by producing complete medical record within their possession before making flippant and frivolous allegations against the Medical fraternity. In the present case, there was no reason for the Complainant to withhold the material information about Malaria fever his son was suffering from before the ankle sprain.
What is the purpose of filing a criminal case, case in Human Rights Commission and Consumer Redressal Commission, we are unable to fathom his intention. This observation is made on the basis of the different versions given by the Complainant in these three aforesaid courts. The Complainant has changed his stance in each of these places and there are inconsistencies in his allegations. Everything is hearsay. In this case, each and every Doctor has supported him and tried to help him whether he is a Government or Private employee or in their Clinic whatever they did, there was an element of humanitarian touch in the conduct of the Doctors. After taking so much help, advise and treatment, the Complainant has taken U turn and filed this complaint alleging deficiency in service and medical negligence which, in our view, is unfair and uncalled.
In Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Ors., Civil Appeal No. 1385 of 2001 decided on 10.2.2010, the Apex Court has held that It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/ hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.
In Usashi Mukherjee & Anr. Vs. Coal India Ltd. & Ors., IV (2009) CPJ 56 (NC), it was held that Doctors cannot be expected to know the medical history of the patient on their own, unless it is brought to their notice by the patient or their relatives.
Withholding and suppressing the material facts of the case history of the patient to the Doctor is unpardonable conduct of the patient/relatives. Doctors are subjected to mental agony when their professional conduct is being questioned by unreasonable demands made by complainants only to extract exaggerated compensation through undue means.
Previous medical history of the patient is a MUST to be produced before the Doctor while availing their services Patients / complaints should come to the consumer Fora only with clean hands for availing the mechanism available under the Consumer Protection Act. Non-disclosure of material facts to the doctors while seeking their medical service, in our view is atrocious.
The doctors suffered in the hands of such insensitive, irresponsible and greedy complainants and we have scant regard for such citizens of this country.
In the present case, it is strange where father/complainant not only withheld material information regarding malaria fever but also was uninterested in getting investigations done immediately as per the advise of the Doctors; and the fact that he was not willing to admit his son to S.N. Medical College/Hospital to get better quality treatment and timely intervention, knowing that his son was in critical condition, give clear indication that Complainant himself was negligent in his conduct.
In view of the aforesaid discussion, we find there is no deficiency in service or medical negligence on the part of the Opposite Parties.
Accordingly, the complaint is dismissed. No order as to cost.
..J. ( K.S. GUPTA ) PRESIDING MEMBER ( RAJYALAKSHMI RAO ) MEMBER Mk/